Canada: What Hospitals Need To Know Following The Supreme Court Of Canada’s Decision On Physician-Assisted Dying

Last Updated: February 24 2015
Article by Kathryn M. Frelick and Jesstina McFadden

On February 6, 2015, the Supreme Court of Canada ("SCC") issued Carter v. Canada (Attorney General) ("Carter"), a landmark and unanimous decision on physician-assisted dying. 

In its decision, the Court declared the Criminal Code of Canada ("Criminal Code") provisions prohibiting a physician's assistance in dying to be void where physician-assisted dying was being sought by competent, consenting adults with grievous and irremediable medical conditions.   

What Hospitals Need to Do

The Carter decision has a number of implications for hospitals.  It is expected that patients, families and health care providers will have questions regarding physician-assisted dying, and may actively seek this option as part of a plan of treatment for end-of-life, or through power of attorney documents, advance directives or other instructions.

The Court's declaration of invalidity does not take effect until February 6, 2016, to allow the federal and provincial governments to put in place legislation to address these issues.  Nevertheless, it is strongly recommended that hospitals and other health care facilities be proactive in ensuring that mechanisms are in place for addressing issues relating to physician-assisted dying as part of the continuum of end-of-life decision-making.  This includes:

  • End-of-life policies and procedures that address end-of-life decision-making (including palliative sedation, the withdrawal and withholding of treatment and physician-assisted dying) and that are consistent with federal and provincial laws and professional obligations;
  • Forms and other tools that are consistent with and support hospital policy;
  • Information and education for physicians and staff regarding the Carter decision, its implications and the organization's response; and
  • Strategies and tools for communicating with patients and families about physician-assisted dying.

Miller Thomson's Health Industry Group has extensive experience advising clients on end-of-life issues, and has assisted health care facilities in developing and updating end-of-life policies, procedures and tools and providing education to Boards, organizational leadership and health care providers.  We would be pleased to provide our assistance in positioning your organization to appropriately address physician-assisted dying and related issues.

What Hospitals Need to Know

Under the Criminal Code, it is a criminal offence to aid or abet a person in committing suicide, and no person can consent to death being inflicted upon them.  These provisions effectively prohibit the provision of assistance in dying in Canada.   

In Carter, the constitutionality of this prohibition was challenged by a group of claimants that included a woman with amyotrophic lateral sclerosis (ALS) and a physician who would be willing to participate in physician-assisted dying if it were no longer prohibited.  The SCC concluded that the Criminal Code provisions prohibiting assistance in dying unjustifiably infringe the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms ("Charter"), to the extent that they deprive a competent adult of physician assistance in dying, where the individual:

(1)   clearly consents to the termination of life; and

(2)   has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.   

In its decision, the Court was clear that the scope of its declaration was restricted to these factual circumstances, and was not intended to address other situations where physician-assisted dying may be requested.   

As noted above, the Court suspended the declaration of invalidity until February 6, 2016 to allow the federal and provincial/territorial governments time to enact legislation consistent with the constitutional parameters set out by the Court, should they choose to do so.  In the meantime, it declined to provide a constitutional exemption to the continued application of the current Criminal Code provisions.  At present, the Criminal Code restrictions remain in place. 

In reaching its conclusions in Carter, the Court suggested that assisted dying is part a continuum of end-of-life decisions that also includes refusal and withdrawal of lifesaving or life-sustaining treatment and palliative sedation.  The Court supported the trial judge's finding that concerns about decisional capacity and vulnerability for those who may seek physician-assisted dying were applicable to all end-of-life medical decision-making, and that the associated risks could be properly limited through a carefully designed and monitored system of safeguards including existing mechanisms for physician assessment of decisional capacity on a case-by-case basis.

The Court made it clear that its decision simply renders the criminal prohibition on physician assistance in dying invalid, and is not intended to compel physicians to provide such assistance.  The Court also acknowledged that there may be a number of possible solutions to the social issues and competing societal values relating to physician-assisted death, and states that it remains open to the federal and provincial governments and physician regulatory authorities to address these issues through a "complex regulatory response."  In light of the key role physicians will play in assisted dying, any regulatory response will need to reconcile the Charter rights of patients and physicians. 

We fully expect that government and regulators will tackle the issue of physician assisted dying within the next year. We will continue to monitor developments in this area and provide updates as needed.   

There is no doubt that ongoing attention to end-of-life issues will continue to shape the law in this area.  Having effective policies, procedures and other tools in place will not only provide the best protection from liability for facilities and care providers alike, but will also ensure that any debate is focussed on the issues themselves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kathryn M. Frelick
Jesstina McFadden
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